In Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV-LENARD/O’SULLIVAN (S.D. Fla. Feb. 11, 2021), Florida Magistrate Judge John J. O’Sullivan denied the plaintiff’s Motion for Sanctions for Spoliation of Evidence as to Body Camera Footage Admitted by Defendant to Exist and Supporting Memorandum of Law failing to preserve the body camera footage of the interview of John Doe, finding that “the plaintiff has not met her initial burden of showing body camera footage of John Doe’s interview ever existed”.
The plaintiff was a cruise ship passenger onboard a vessel operated by the defendant and participated in a dance party organized by the defendant during the cruise in April 2019. During the party, an intoxicated passenger (identified in the Order as “John Doe”) approached the plaintiff and attempted to twirl her, causing her to fall and suffer “traumatic” injuries that included a fractured wrist which required surgery. Despite the plaintiff’s counsel sending a certified letter of representation to the defendant, requesting that it preserve any video records at least one hour prior through one hour after the incident, the defendant only preserved six minutes of the video footage of the incident and also didn’t preserve body camera footage of the plaintiff’s oral statement concerning the incident (which the defendant asserted was never recorded), leading to a motion for sanctions from the plaintiff. On October 2, 2020, Judge O’Sullivan denied the plaintiff’s motion, finding the amount of video preserved “to be sufficient”.
Then, on January 4, 2021, the plaintiff filed the instant motion seeking sanctions for the alleged spoliation of body camera footage of the interview of John Doe, requesting exclusion of the approximately six minutes of CCTV footage depicting the incident or an adverse inference instruction to the jury “that the body camera footage would have shown that the male passenger demonstrated unruly, erratic, intoxicated, and dangerous behavior at the time of his interview”. The court set a status hearing for February 4, 2021 to address the following issues:
“(1) which side bears the burden of proof in establishing that body camera footage of John Doe’s interview existed; (2) whether an evidentiary hearing is necessary to determine whether body camera footage of John Doe’s interview existed and (3) what evidence the parties would be prepared to present if an evidentiary hearing is warranted.”
The parties disputed whether body camera footage of the interview of John Doe ever existed, with the plaintiff relying solely on the deposition testimony of Charlie Electores, the defendant’s Guest Security Supervisor, to support her position that there was body camera footage of the interview of John Doe, because he testified that it was normally expected that the body camera would be on during the interview and that the video would be saved to his work station. However, the defendant insisted that “there was no body cam footage taken of…[John Doe].” According to the defendant’s 30(b)(6) witness, security officers needed to ask permission before making a recording and that John Doe refused to make a written statement.
Judge O’Sullivan stated: “The Court finds that the plaintiff has not met her burden of establishing that the body camera footage of John Doe’s interview ever existed. Although the defendant has not submitted competing evidence in the form of an affidavit or declaration attesting that John Doe’s interview was never recorded on body camera footage, the burden of establishing that the body camera footage existed in the first place is on the plaintiff.”
Noting the plaintiff’s argument that “because Mr. Electores was equipped with a body camera and John Doe was interviewed outside of the medical facility, then body camera footage of the interview of John Doe must have existed”, Judge O’Sullivan stated “Thus, in order to conclude that body camera footage of the interview of John Doe must have existed, the Court would have to assume that Mr. Electores asked John Doe if Mr. Electores could record the interview and John Doe agreed to the interview being recorded or Mr. Electores surreptitiously recorded John Doe during the interview. There is no record evidence to support these suppositions. Mr. Electores himself testified that he had no recollection of whether he turned on his body camera when he interviewed John Doe…The plaintiff’s proffered evidence is speculative and insufficient to establish by a preponderance of the evidence that body camera footage of the interview of John Doe at one point existed.”
As a result, Judge O’Sullivan denied the plaintiff’s motion for sanctions.
Kelly Twigger covered this ruling in her ACEDS #caseoftheweek video on LinkedIn here, where she discusses both rulings in the case. Check it out!
So, what do you think? Do you agree that the plaintiff failed to meet her burden that the video ever existed? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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